Lance O'Keefe v Sydney Catholic Schools Limited as Trustee for Sydney Catholic Schools Trust
[2022] FWC 2083
•5 AUGUST 2022
| [2022] FWC 2083 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lance O’Keefe
v
Sydney Catholic Schools Limited as Trustee For Sydney Catholic Schools Trust
(U2022/1215)
| DEPUTY PRESIDENT EASTON | SYDNEY, 5 AUGUST 2022 |
Application for an unfair dismissal remedy – refusal to be vaccinated against COVID-19 – public health orders – valid reason found – dismissal was not harsh, unjust or unreasonable – application dismissed.
Mr Lance O’Keefe was employed by Sydney Catholic Schools Ltd as Trustee for the Sydney Catholic Schools Trust as a teacher. In Term 4 of 2021 an education-specific Public Health Order required teachers to have two doses of an approved COVID-19 vaccine by 8 November 2021. There was no medical reason why Mr O’Keefe could not have been vaccinated by this date, but he chose not to. The employer took steps to give Mr O’Keefe the opportunity to discuss his preparedness to be vaccinated but he chose not to. On 17 November 2021 the employer gave Mr O’Keefe the requisite notice that his employment would end at the end of the January 2022 school holiday period.
On 27 January 2022 Mr O’Keefe made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Sydney Catholic Schools Ltd as Trustee for the Sydney Catholic Schools Trust (Sydney Catholic Schools). Mr O’Keefe seeks reinstatement to his former position.
For the reasons that follow I do not find that the dismissal was unfair.
The Evidence
Mr O’Keefe commenced employment with Sydney Catholic Schools in 2014 as a casual teacher. In January 2021 he commenced a permanent full-time position as a teacher at Holy Cross Catholic Primary School Woollahra, which is the position from which he was dismissed in January 2022.
In June 2021 most of New South Wales, including schools, went into lockdown because of an outbreak of the Delta strain of the COVID-19 virus. As part of the process of returning from lockdown Public Health Orders issued by NSW Health required education and care workers to be vaccinated.
On 23 September 2021 the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 was issued pursuant to section 7 of the Public Health Act 2010 (NSW). This Public Health Order:
(a)prohibited education workers from carrying out relevant work after 8 November 2021 unless they had 2 doses of a COVID-19 vaccine, or had been issued with a medical contraindication certificate; and
(b)required education providers to take all reasonable steps to ensure that their employees complied with the Public Health Orders; and
(c)was replaced by subsequent orders in substantially the same terms, the last replacement order ceased on 13 May 2022.
It was not in contest in these proceedings that the successive Public Health Orders applied to Mr O’Keefe and Sydney Catholic Schools and prevented Mr O’Keefe from working at his school unless he was vaccinated.
When the first of the Public Health Orders was issued on 23 September 2021 schools were generally in lockdown and teaching and learning took place online. Schools were aiming to reopen face to face teaching from 18 October 2021.
On 1 October 2021 Sydney Catholic Schools issued a “COVID-19 Vaccination Update” which advised that unvaccinated staff members would not be permitted to attend schools in person from November 8. The consequences for staff who were not vaccinated was explained in clear terms:
“Sydney Catholic Schools will comply fully with the Public Health Order which means that unvaccinated staff members will not be permitted to attend schools in person from November 8. As far as operationally possible, we will also be requiring school staff to be fully vaccinated before returning to school from October 18. All employees are asked to upload their vaccination certificate to ServiceNow as soon as it is available.
…
Over the next two weeks, your school principal/manager will be in contact with you to discuss your individual circumstances and to establish the way in which these arrangements may work in your school community.”
Mr O’Keefe received this update. At this time Mr O’Keefe was communicating by SMS with the Deputy Principal of his school, Ms Luksic, about whether or not he could advise the employer that he was vaccinated. At this same time the birth of Mr O’Keefe’s first child was imminent. Neither Mr O’Keefe nor his partner were vaccinated because, he says, of concerns about possible effects of COVID vaccines on pregnant women.
On 6 October 2021 Mr O’Keefe asked the Deputy Principal by email:
"Understandably, I would prefer not to discuss my private health information over the phone or text. I'm seeing my family doctor in two weeks time to discuss vaccination. If you have any requests about this could you please email me directly."
If Mr O’Keefe actually saw his family doctor in October 2021 about vaccination he led no evidence of the advice he received.
Mr O’Keefe said that there was a policy within Sydney Catholic Schools that staff would not be contacted during a period of leave, but conceded in evidence that by this email he had invited further communications about his vaccination status by way of email.
On 7 October 2021, being five weeks before the 8 November deadline, the Principal wrote directly to Mr O’Keefe indicating that he needed to make his own decision in light of the Public Health Orders but needed to advise Sydney Catholic Schools accordingly:
“I understand you would like to weigh all the options but unfortunately, since the release of the Public Health Order, you will be required to make a decision as soon as possible in order to be able to be on the school site. If you are still not fully vaccinated as our students return, I am afraid you will not be able to return to school.
Although Sydney Catholic Schools has committed to working with those staff who have not been vaccinated, what this will look like depends on the needs of our school and our students as to whether we can continue to have you working remotely. It may involve you needing to access Long Service Leave (or Leave Without Pay) for Term 4, to allow us to cover face to face learning on the school site. We will need to know your intentions as soon as possible to cater for the learning needs of your Year 2 students as they will be back onto the school site for face to face teaching from Monday 25th October.
I encourage you to make an appointment and speak with your doctor and get all the information about the vaccines and the options available to you so you can make an informed decision as soon as possible.
I understand that you will be taking paternity leave for two weeks which is an exciting time in your life. The paternity leave will commence from the day your partner is admitted into hospital for the delivery. You will need to have a Doctor’s certificate from the delivery day and submit it into PHRIS as soon as possible after the delivery.”
Mr O’Keefe’s child was born on 19 October 2021 and he took paternity leave and then a further period of unpaid leave until the end of the school year.
Mr O’Keefe chose not to engage with his employer about his intention to remain unvaccinated.
The 8 November 2021 deadline passed while Mr O’Keefe was on unpaid leave.
On 17 November 2021 (nine days after the deadline) Sydney Catholic Schools tried to speak to Mr O’Keefe regarding his “intention for next year” but Mr O’Keefe did not respond to his employer’s messages. Mr O’Keefe says that “everything was feeling uncertain and rushed” at this time and he had hoped/expected Sydney Catholic Schools would have talked to him directly rather than dismiss him “all of a sudden”.
On 17 November 2021 Sydney Catholic Schools tried to meet with Mr O’Keefe on zoom to discuss “[his] intentions for 2022”. An SMS was sent to his phone at 8:08AM. An email was sent at 9:49AM with an invitation to a zoom meeting.
Mr O’Keefe agreed in his evidence that he knew that Sydney Catholic Schools wanted to talk to him about his vaccination status, had received the SMS and the email trying to arrange the meeting, and that he had decided not to respond to either message and not to attend the meeting on Zoom.
Later that day Sydney Catholic Schools sent a letter to Mr O’Keefe advising him that his employment would terminate at the end of the January holiday period. The letter included the following:
“… As you are aware, on 1 October 2021 I emailed you to advise you of the NSW Government Public Health Order. This order resulted in COVID vaccinations, or evidence of a Medical Contraindication to COVID vaccinations, becoming an inherent requirement of your role from 8 November 2021.
Throughout Term 4, Sydney Catholic Schools has supported staff who were not vaccinated by identifying, where possible, opportunities for staff to work remotely, and where this was not possible, allowing staff to access long service leave or leave without pay. This approach was to give people time to get all the available information and discuss options with their families and their doctors.
While I completely respect the personal decision regarding vaccination, from 8 November 2021, it became unlawful for unvaccinated staff to work in our schools. As a consequence of this, I regret to inform you that your employment will end on Thursday 27 January 2022. This letter constitutes official notice of the ending of your employment.
Accordingly, we will need to advertise and fill your role at Holy Cross Woollahra shortly, so we are appropriately staffed for face to face teaching in 2022. Your Principal will assist you to make arrangements for your last day, including how we facilitate the return of any school property and also pick up any personal items you may have at the school. They will also provide you with a breakdown of your entitlements, including any leave monies you will be paid, as at your last day of employment. We are also happy to provide you with a statement of service should you wish one.
If you have changed your mind about your vaccination status, please contact your Principal immediately and no later than Wednesday 17 November, as this would mean we do not need to give effect to the ending of your employment, which is our preferable option.”
On 1 December 2021, being two weeks into the notice period, Mr O’Keefe wrote to Sydney Catholic Schools listing ten reasons he believed that “termination is unreasonable, harsh and unjustified”, and indicated “I have consulted a legal representative from my family and lodged an unfair dismissal application with the Fair Work Commission.”
On 13 January 2022, being two weeks before the start of the 2022 school year, Mr O’Keefe contacted Sydney Catholic Schools to advise that he had contracted COVID and that he had a medical contraindication. Mr O’Keefe also asked the following:
“I understand that employees are entitled to 12 months unpaid parental leave under the Fair Work Act and possibly an additional 12 months of unpaid paid (sic) leave after that.
That is something that I would have liked to be able to consider."
The medical contraindication certificate was issued because of the fact that Mr O’Keefe had contracted COVID-19.
Dr Alister Sigaroudi gave evidence under an order to attend sought by Sydney Catholic Schools. Dr Sigaroudi confirmed that he provided a medical contraindication form at the request of Mr O’Keefe. Dr Sigaroudi advised Mr O’Keefe in January 2022 that he should be vaccinated as soon as Mr O’Keefe was able after three months from having COVID. He said that he gave a temporary medical contraindication for a period of six months at the request of Mr O’Keefe (six months being the outside of the range recommended by ATAGI). Dr Sigaroudi confirmed that apart from having COVID, there was no medical reason why Mr O’Keefe could not be vaccinated.
The response from Sydney Catholic Schools to Mr O’Keefe’s request made on 13 January 2022 was that it needed certainty, that it had already finalised its recruitment for a replacement for his role, that the medical contraindication certificate is only for a temporary period.
Consideration
Section 387 of the FW Act requires me to take into account the following matters in determining whether Mr O’Keefe’s dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.
At the time that Sydney Catholic Schools made the decision to terminate Mr O’Keefe it was taking proper and reasonable steps to ensure that it complied with the education-specific Public Health Orders in force at the time which, in no uncertain terms, required all teachers to be vaccinated by 8 November 2021.
The NSW and ACT Catholic Systemic Schools Enterprise Agreement 2020 applied to Mr O’Keefe’s employment and required Sydney Catholic Schools to give "four school term weeks' notice" to terminate the employment of any teacher.
In October and November 2021 Sydney Catholic Schools was re-opening schools out of lockdown and was quite properly looking towards staffing for the next school year.
At this time there was no basis for Sydney Catholic Schools to think that Mr O’Keefe met the requirements of the Public Health Order, nor was there any basis for Sydney Catholic Schools to think that Mr O’Keefe would meet the requirements of the Public Health Order at the start of the next school year.
Mr O’Keefe provided lengthy submissions regarding why he says mandatory COVID-19 vaccination is unreasonable. Mr O’Keefe denies that he is “anti-vaccination” and prefers to describe himself as “anti-mandates" or “pro-choice". Mr O’Keefe thinks that he is at greater risk of a dangerous reaction to the vaccine than he is to a dangerous illness from COVID itself, despite there being no medical evidence to support his belief and in fact despite the contrary advice given in January 2022 by Mr O’Keefe’s own doctor.
In this case the reasonableness of mandating vaccination is irrelevant. The NSW Health Minister chose to lawfully[2] make a Public Health Orders specifically for schools and Sydney Catholic Schools is required to comply with those orders.
The Public Health Order has an exemption regime but Mr O’Keefe does not qualify. As far as the Public Health Order is concerned, there is no medical reason why Mr O’Keefe could not be safely vaccinated. It does not appear that Mr O’Keefe sought medical advice and any point prior to his dismissal about any individual risk to him from being vaccinated. In his evidence he refers to some uncertainty about vaccination for pregnant women, which may well explain why his partner was not vaccinated, but does not assist Mr O’Keefe's case at all.
In these circumstances there was a valid reason to dismiss Mr O’Keefe from his employment.
Was the Applicant notified of the valid reason?
Section 387(b) requires that I take into account whether Mr O’Keefe “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.[3]
In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate.[4] The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a)[5] and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms.[6]
Mr O’Keefe was notified of the reasons for his dismissal before Sydney Catholic Schools made the decision to give notice to terminate the employment.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
Mr O’Keefe was given a proper opportunity to respond to the allegations against him.
The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
Sydney Catholic Schools gave Mr O’Keefe a reasonable opportunity to provide a response as to why he should not be terminated and Mr O’Keefe chose not to engage with Sydney Catholic Schools at that time.
Mr O’Keefe complained that Sydney Catholic Schools should not have contacted him during his leave and should have waited until he returned to work in 2022. This submission is not realistic.
I do not see that there is anything improper in contacting Mr O’Keefe regarding these matters during his period of unpaid leave. There is no suggestion that Mr O’Keefe was physically or mentally unfit to respond to his employer's queries. Moreover, Sydney Catholic Schools invited Mr O’Keefe to engage on several occasions over several weeks to liaise or respond, but Mr O’Keefe chose not to.
Sydney Catholic Schools was entitled to press Mr O’Keefe for a response. Sydney Catholic Schools was entitled to know if Mr O’Keefe had any intention to be vaccinated in order to be eligible to work and teach on the first day of term in 2022, or whether it needed to find a replacement.
If Sydney Catholic Schools wanted to terminate Mr O’Keefe and replace him with another teacher it needed to give Mr O’Keefe four weeks term time notice. Assuming that the end of term 4 was 15 December 2021, Sydney Catholic Schools needed to give Mr O’Keefe notice of termination by 17 November 2021.
The reality is that any more extensive discussion with Mr O’Keefe was unlikely to change the situation in any event. By November 2021 he had firmly resolved that he would not be vaccinated and Sydney Catholic Schools had resolved, quite reasonably, that online teaching would only occur during COVID outbreaks in individual schools. Mr O’Keefe was not vaccinated at the time of the hearing, despite the specific advice from Dr Sigaroudi that he should be vaccinated by mid-April 2022. In these circumstances there was no viable alternatives to dismissal.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of Sydney Catholic Schools’ enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Sydney Catholic Schools’ enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Sydney Catholic Schools’ enterprise does not lack dedicated human resource management specialists.
What other matters are relevant?
Section 387(h) allows me to take into account any other matters that are relevant.
Mr O’Keefe complains that he was not properly consulted with about the mandate, nor did Sydney Catholic Schools properly engage with him about alternatives such as online teaching, nor did Sydney Catholic Schools raise with Mr O’Keefe the possibility of taking a long period of unpaid leave.
These criticisms from Mr O’Keefe are unfounded. If he intentionally ignored the invitation to meet on 17 November 2021, and intentionally ignored the earlier correspondences, then he cannot complain about a lack of consultation. Similarly he cannot complain that adequate alternatives were not properly discussed or considered.
In any event I do not regard either alternative as adequate in the circumstances.
Firstly, there is no evidentiary basis to establish that retaining Mr O’Keefe to teach online was an adequate alternative to dismissal. The evidence from Sydney Catholic Schools was clear that it had decided that all teaching would be face to face except when outbreaks arose in particular schools that prevented attendance at school. At the time the decision to reject or avoid hybrid arrangements was logical and reasonable. Out of necessity most, if not all teachers were teaching online for portions of 2021, and the fact that Mr O’Keefe had taught online in 2021 does not particularly support the proposition that Sydney Catholic Schools should have altered its operation to allow Mr O’Keefe to teach online.
Secondly Mr O’Keefe chose not to raise the possibility of taking 12 months unpaid parental leave until his employment fate was already sealed. It was not until January 2022, two weeks before the commencement of the school year and after Sydney Catholic Schools had employed a replacement teacher, that Mr O’Keefe raised the possibility of taking a longer period of unpaid leave. By this point Sydney Catholic Schools was under no obligation to consider Mr O’Keefe’s application – he had not communicated or co-operated with Sydney Catholic Schools in 2021 about his decision not to be vaccinated or his intentions for 2022. Sydney Catholic Schools was forced to find a replacement for Mr O’Keefe and it had done so. In his belated response to Sydney Catholic Schools two weeks before the end of the school year he chose to confirm his opposition to vaccination and threaten legal proceedings, rather than to communicate constructively with his employer.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I find that the dismissal of Mr O’Keefe was, in the circumstances, not harsh, unjust or unreasonable.
Sydney Catholic Schools acted in compliance with an education-specific Public Health Order and out of necessity to ensure adequate staffing arrangements were in place for the next school year.
The consequences for Mr O’Keefe were significant but were the result of the choices he made.
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr O’Keefe was not unfair.
Accordingly, Mr O’Keefe’s application is dismissed.[7]
DEPUTY PRESIDENT
Appearances:
Mr L O’Keefe, Applicant
Ms A Kedar of Barry Nilsson Lawyers for Sydney Catholic Schools
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
June 10.
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[2] Kassam v Hazzard (2021) 396 ALR 302, Kassam v Hazzard (2021) 362 FLR 113.
[3] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596.
[4] Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60], Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 150 [67]-[69].
[5] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].
[6] Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60] citing Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 and Previsic v Australian Quarantine Inspection Services [1998] AIRC 1371 (Print Q3730).
[7] PR744559.
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